Logo Alt Text will go here

Interagency Safeguarding Children ProceduresNottinghamshire Safeguarding Children Board (NSCB)
Nottingham City Safeguarding Children Board (NCSCB)

Underage Sexual Activity

Contents

  1. Introduction
  2. Risk of Harm Indicators
  3. Power Imbalance
  4. Disabled Children and Young People
  5. Information Sharing and Confidentiality
  6. Open Cases to Children's Social Care
  7. Procedures and Thresholds for Referring to Children's Social Care
  8. Children's Social Care Response
  9. Police Response

1. Introduction

Sexual relationships and sexual activity are a normal part of life. Although the legal age of consent for sexual activity is 16 years of age, many young people below this age will develop and show an interest in sex and sexual relationships.

This procedure is designed to support/assist practitioners working with young people to assess and identify where relationships/activity may be abusive and the young people may be in need of the provision of additional support services and/or protection. It will give guidance on information sharing criteria for referral to Children's Social Care and the Police.

The procedure recognises the balance, which needs to be drawn between young peoples' access to safe, confidential health services alongside promoting and safeguarding their welfare.

If at any stage, there are concerns that a child/young person may be at risk of sexual exploitation, please also refer to the practice guidance relating to this issue.

The procedure reflects the recommendations in the Bichard Report and the following:

  • Working Together 2015;
  • The Sexual Offences Act 2003;
  • Guidance on Section 11 of the Children Act 2004;
  • Every Child Matters: Change for Children and Next Steps, to work together to safeguard all children and young people;
  • LASSL August 2004 - Guidance on handling allegations of sexual offences against children and young people;
  • Inter- Agency Practice Guidance on Sexual Abuse;
  • Enabling Young People to Access Contraception and Sexual Health Information and Advice / Best Practice Guidance for Doctors and Other Health Practitioners on the Provision of Advice and Treatment to Young People under 16 on Contraception, Sexual and Reproductive Health - issues relating to the duty of care and confidentiality.

2. Risk of Harm Indicators

Practitioners will come into contact with young people in a variety of settings and will have varying degrees of responsibility for their welfare and sexual health needs. However, all practitioners should be aware of the potential for sexual relationships to be abusive and the need for further action to be taken which may necessitate a referral to Children's Social Care. Where there are urgent concerns about the welfare of a child/young person an immediate referral should be made to Children's Social Care.

Understanding the nature of any particular behaviour and the facts surrounding the actual relationships of those involved is critical to the assessment process. In making these judgments, practitioners should consider the holistic needs of the child/young person and the specific issues outlined below:

  • The age and maturity of the children or young people;
  • Whether the young person is able to understand, and give informed consent to the sexual activity they are involved in;
  • Under the terms of the Sexual Offences Act 2003 children under the age of 13 years old, are not legally capable of giving consent;
  • The nature of the relationship between those involved, with particular weight being given to the child/young person's age and the issues outlined relating to the power imbalance;
  • Whether overt aggression, coercion or bribery was involved including the use of substances (e.g. alcohol or drugs), as a disinhibitor;
  • Whether the young person's own risk-taking behaviours, for example the use of substances, places them in a position where they are unable to make an informed choice about the activity;
  • Any attempts to secure secrecy by the sexual partner beyond what would be considered usual in a teenage relationship;
  • Whether the sexual partner is known to the agency as having other concerning relationships;
  • Whether the child/young person denies minimizes or accepts the concerns for their welfare;
  • Whether methods used to silence, secure secrecy and/or compliance by the sexual partner are consistent with behaviours' considered as an act of 'grooming'. Grooming is likely to involve efforts by a sexual predator (usually older than the child or young person) to befriend a child/young person by indulging or coercing her/him, for example with gifts, treats, money, and drugs. An abuser may also seek to develop trusting relationships with the child/ young person's family with a view to developing a relationship with the child or young person. They may also use other media to develop such relationships, e.g. internet, chat rooms etc.

3. Power Imbalance

Understanding the nature of any particular behaviour and the facts surrounding the actual relationship of those involved is critical to the assessment process. Practitioners need to be mindful of the issues relating to power imbalances. They occur through the differences in size, age, material wealth, and/or psychological, social and physical development/ability, where gender, sexuality, race/culture/faith and the levels of sexual knowledge are exploited to exert such power.

Where a child/young person has a learning disability or communication difficulty and cannot easily communicate their wishes and feelings the issue relating to their consent to sexually active behaviour may equally be exploited. There will also be a power imbalance if the young person's sexual partner is in a position of care and trust.

If the child/young person is accompanied by an adult, the practitioner should consider whether the nature of this relationship gives any cause for concern.

4. Disabled Children and Young People

Disabled children and young people are more likely to be abused than non-disabled children/young people. Their vulnerability to a non-consensual sexual relationship is greatly increased if they are living away from home, have difficulties with communication and language, or are subject to the use/misuse of substances, including medication. In assessing whether a relationship presents a risk of harm to a disabled child/young person, practitioners need to consider the indicators listed in Safeguarding Disabled Children in light of these additional vulnerabilities. Disabled children and young people may be particularly vulnerable to abuse of power (see above).

5. Information Sharing and Confidentiality

Confidentiality is an issue that causes much anxiety for young people. As a result many young people are reluctant to approach carers/ practitioners for the fear of personal information being discussed widely with other practitioners and/or parents without their consent. It is therefore important that all concerned understand the boundaries of confidentiality.

Every practitioner has a duty to Safeguard and Promote the Welfare of all Children and young people. It must always be made clear to children and young people as soon as reasonably possible or appropriate and throughout any working relationship, that the duty of confidentiality is not absolute, and that there will be circumstances where the needs of the child or young person, or other children and young people, can only be safeguarded by sharing information with and acquiring information from other agencies. There is therefore a need for all practitioners to balance the child or young person's need for advice and treatment and the right to confidentiality with the need to ensure their safety.

Information sharing between agencies is always permissible if it is to safeguard a child/young person's welfare.

Any practitioner who is concerned about the risks associated with the sexual activity of a child/ young person should in most circumstances, discuss these concerns with the child/ young person first. Consent where appropriate should be obtained from the child/ young person for the information to be shared with their parent/carer (including corporate carer e.g. local authority foster carers, residential social workers and social workers), particularly where arrangements are being made to respond to pregnancy or sexual health needs.

Where the child/ young person refuses to give consent, practitioners should proactively encourage the child/young person to involve their parent/ carer or to identify another relative who could act in this capacity.

In all circumstances where there is an indication that the child/ young person may be at risk of harm as a result of their sexual activity, practitioners should make appropriate enquiries to determine this. This may include discussion with other members of their own agency or other involved agencies. Consent from children and young people should be sought for this, except where to do so this would:

  • Place the child/young person at increased risk;
  • Jeopardise any potential Police investigation;
  • Place practitioners at risk.

When making these judgments, practitioners may find it helpful to refer to the principles of the Fraser guidelines. Although these are written specifically in relation to Health Advice services, their principles can be applied more widely.

The decision to share information with parents/ carers/ legal guardians will be informed by the nature of the concerns and information exchanged, consultation between relevant agencies and the factors below. Where the young person is withholding their consent, the practitioner will be required to use their professional judgement and consideration should be given to the following additional factors relating to the child/young person:

  • Age and maturity;
  • Development, understanding and maturity;
  • Ability to comprehend the implications and risks to themselves.

The practitioners involved need to be mindful of the family background/circumstances and the issues relating to the parents'/carers'/guardians' ability and commitment to protect the child/young person. The conduct and welfare of children and young people rests heavily with parents/carers/guardian. Practitioners should therefore acknowledge their role and encourage the child/young person, at all points, to share information with their parents/carers/guardian wherever it is safe to do so.

All discussions with the child/young person, parents/carers and other agencies should be recorded, giving clear and informed reasons for the professional decisions made and actions taken or not.

6. Open Cases to Children's Social Care

Where a child is already an open case to Children's Social Care, any new safeguarding concerns should be responded to taking into account any existing processes.

7. Procedures and Thresholds for Referring to Children's Social Care

Procedure for dealing with Individual Cases Where Abuse is Suspected

Any agency or practitioner who considers a child or young person's sexual activity/ relationship, is or is likely to cause them or another child/ young person significant harm, should make an immediate referral to Children's Social Care.

Where practitioners would find it helpful in decision-making, discussions can take place with Children's Social Care without this necessarily constituting a referral. Practitioners may also make contact with Children's Social Care for advice without divulging the name of the young person in question. However, practitioners in all settings should be mindful of their personal and professional responsibility to take action where abuse is suspected.

The following specific guidance should be followed relating to different age groups of children/young people:

Young People Under The Age Of 13

Children/young people under the age of 13 years are not legally capable of giving their consent to any sexual activity (Sexual Offences Act 2003) and are clearly more vulnerable by virtue of their age. Under the Sexual Offences Act, penetrative sex (including oral sex) with a child under 13 is rape.

Children/young people, who become pregnant under the age of 13 years, must always be referred to Children's Social Care.

Any sexual activity within this age group should be carefully considered within the agency or organisation to determine whether a referral to Children's Social Care is necessary. This judgment will always include a discussion between the practitioner and their line manager/nominated person for child protection within their agency. In making this decision, practitioners and their managers should be mindful of the guidance within Working Together 2015.

"Where an allegation concerns penetrative or other intimate sexual activity, there would always be reasonable cause to suspect that a child, whether a boy or girl, is suffering or is likely to suffer, significant harm. There should be a presumption that the case will be reported to Children's Social Care".

Where a referral has been made to Children's Social Care and there are grounds to believe an offence has been committed, the referral will always be discussed by Children's Social Care with the Police and a strategy for investigation agreed. Equally if such a referral has come to the Police, they will inform Children's Social Care and agree a strategy for investigation.

Any decision made not to refer the child/young person to Children's Social Care should be agreed with the agency's nominated officer for child protection and/ or appropriate manager, and the reasons for the decision recorded.

All cases involving under 13s should be fully documented including detailed reasons for all decision making.

Both Partners/Young People Aged 13, 14 And 15

Sexual activity with a young person under the age of 16 remains a criminal offence. Where it is consensual and both parties are under the age of 16, there still may be serious consequences for the welfare of these young people.

Young people in this category should be assessed fully against the indicators of abuse. Within this age range, the younger the child/young person, the stronger the presumption that the sexual activity is a matter of concern.

Where there is concern that the young person is suffering or may be at risk of suffering Significant Harm then a referral should be made to Children's Social Care.

In all other cases the agency should determine how they will meet the identified needs of both children and young people within the normal limits of their agency's role and responsibility, with the assistance of agency partners as appropriate.

Again, all cases should be carefully documented including where a decision has been made not to share information.

Child/Young Person Under The Age Of 16 And Partner Over 16 Years

Alongside considerations outlined above, particular attention should be given to the age and identity of the older partner. As a guide, the greater the age difference between partners the higher the concern will be.

Practitioners should carefully consider a referral to Children's Social Care in these situations.

Safeguarding Young People 16 And 17 Years

All young people under the age of 18 fall within the scope of these procedures.

Consensual sexual activity where both parties are over the age of 16, is not a criminal offence. However, there are exceptions:

  • Where there are issues relating to prostitution (under 18);
  • Trafficking (any age);
  • Sexual activity with a person with a mental disorder (under 18);
  • Sexual activity with a family member (be it a child or adult relative);
  • And where there are issues regarding the production of indecent images of children under 18.

Young people over the age of 16 but under the age of 18 are deemed unable to give consent to sexual activity with any adult in a position of care/trust or a family member as defined by the Sexual Offences Act 2003.

Where concerns are thought likely to persist beyond the young person's 18th birthday and they are deemed a Vulnerable Adult, early discussions should take place with the appropriate Adult Care team to ensure a smooth transition to protection under the local Vulnerable Adult Protection Procedures.

8. Children's Social Care Response

In all cases involving under 13s, where a referral has been made to Children's Social Care, they will discuss the referral with the Police to agree how the matter should proceed. A Strategy Discussion or meeting should take place. All agencies are expected to provide such information as is necessary to ensure full discussion of the concerns can take place. Health practitioners should always be involved in strategy discussions.

For all other cases involving 13 - 15 year olds where a referral has been made, Children's Social Care will check if relevant information, including intelligence, is held by the Police.

Where no information is held by the Police, Children's Social Care will make a decision, based on all available information, whether a referral to the Police is necessary. In this area health practitioners should be seen as particularly useful when making judgements.

Any decision whether or not to refer to the Police should be made by a team manager and the reasons for this fully recorded.

Where the Police indicate that relevant information is held by them, the duty social worker will discuss the nature of this information with the Child Abuse Investigation Unit (CAIU) and agree the next steps.

Nottinghamshire Police will share this information without the automatic need for this to trigger a full Police investigation.

Where, following consideration of all available information, there is reasonable cause to suspect Significant Harm to a child/young person has or is likely to occur, a referral and a Strategy Discussion will always take place with the Police in order to decide the appropriate course of action.

Depending on the nature of concerns and outcome of discussions, there are a number of possible actions that Social Care and/or Police may decide to pursue:

  1. The reported sexual activity of the young person is not considered to be causing harm. If there are no other concerns that have been identified no further Police or Social Care action is required. The child/young person however will be signposted to an appropriate agency for sexual health and relationship advice and guidance;
  2. Where there are areas of concern further enquiries will be undertaken and an assessment of need S.17, or assessment of risk S.47 will ensue;
  3. Where the information provided and/or further enquiry indicates that the child/young person is suffering or likely to suffer significant harm a single agency (Children's Social Care) or joint Police and Children's Social Care S.47 investigation will be undertaken and an appropriate plan of intervention will be agreed;
  4. Where the child or young person appears to be a CIN a multi-agency meeting will be held to plan and co-ordinate, which agencies should be involved and what support will be provided.

Children's Social Care must electronically record all decision making in relation to information sharing with the Police in such a way as to enable the reporting of the number of such reports, decisions made and reasons for these decisions.

The referring agency should be kept updated of any investigation at all stages of the process including the proposed outcome of Social Care/Police action.

9. Police Response

The Police response to each referral will be determined by the individual circumstances of that case. Decision making should always be made with partner agencies via multi-agency strategy discussions/ meetings and will be informed by the guidance outlined in this procedure.